Medical Marijuana Group Seeks to Clarify Pot Transfer Rules

By Beacon Staff

A complaint filed in Flathead County District Court looks to clarify the state law on medical marijuana transfers between registered caregivers, which a medical marijuana group says is an integral part of the business.

The core issue is whether a judge would consider marijuana transactions between caregivers legal under Montana’s Medical Marijuana Act. Attorneys for the plaintiffs contend that the transfers are indeed legal, and that caregivers should not be prosecuted for completing them.

Attorneys Timothy Baldwin and Chris Lindsey filed the motion on behalf of the Montana Medical Growers Association (MMGA), as well as three anonymous men and two anonymous women.

Flathead County Attorney Ed Corrigan is listed as the defendant. Administrators at the county attorney’s office said they would respond to the complaint after their civil attorneys examined it.

The complaint seeks declaratory judgment to determine that a medical marijuana caregiver can legally “deliver, transport or transfer marijuana and its paraphernalia to another caregiver” either themselves or through an agent.

It also looks to clarify that a caregiver can legally cultivate and manufacture marijuana as an agent or a contractor for another caregiver.

The attorneys asserted in their complaint that anonymity is necessary for their clients because “otherwise they would be forced to self-incriminate themselves based on statements made” in the filing.

However, the complaint references two active cases in Flathead County District Court, in which Lief Erickson and Robin Ruiz are being charged with criminal possession of drugs with intent to distribute.

According to court documents, Erickson and Ruiz were on their way from Kalispell to Great Falls, where they were stopped by an agent from the Northwest Drug Task Force.

The agent found three pounds of marijuana and THC-infused honey that would allegedly be sold to a buyer in Great Falls, records state.

In an interview, Lindsey said part of the defense for Erickson and Ruiz will be that they were participating in the medical marijuana program, and he would like a judge to make a decision clarifying the caregiver-to-caregiver rules.

Lindsey, who is also seeking declaratory judgment on marijuana transfer in Missoula County, said the Flathead cases presented an opportunity for legal standing to clarify the transfer rules.

The MMGA has asked the state attorney general’s office for an opinion on caregiver-to-caregiver transactions, Lindsey said, but so far there has been no comment. This allows the state to remain out of disputes on the issue, he said.

But now that the Flathead County Attorney’s office has filed criminal charges against Erickson and Ruiz, Lindsey said the group has the opportunity to go to a judge and make an argument.

He added that he thinks these types of transactions have not been widely prosecuted in the past because law enforcement was waiting to see what the Legislature would do about medical marijuana regulations.

“Folks in law enforcement have decided enough is enough,” Lindsey said. “It’s not up to law enforcement to interpret law, that’s what judges are for.”

Jim Gingery, executive director of the MMGA, said the confusion regarding the legality of caregiver-to-caregiver marijuana exchanges is cause for concern in the medical marijuana community.

“If there’s no opportunity for a caregiver or patient to acquire medical cannabis, where are they to obtain the first seed?” Gingery said. “We know the plant is God given, but not many of us have a direct connection for him to drop a seed in our backyard.”

Budding businesses should be able to start their crop with seeds or clone plants from other caregivers that they trust, Gingery said.

“I’m calling it the ‘seed defense,’” Gingery said. “How in the world can you get started if you don’t have the first seed? And where do you get the first seed unless you acquire it?”

It’s an issue MMGA discussed with lawmakers, Gingery said, but so far no regulatory action has come through the Legislature addressing their concerns.

Clarifying caregiver-to-caregiver transactions could mean putting documentation mandates in place, he said, such as creating a paper trail of recorded transfers and sales.

As an attorney in the case, Baldwin said declaratory judgment could also help clear up the state-sanctioned rights of Montana medical marijuana providers if federal agents conduct more raids on businesses.

In 2009, the U.S. attorney general’s office issued a memo advising U.S. attorneys in states with medical marijuana laws to not focus resources “on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

If the Montana’s caregiver transactions are specifically declared legal, the caregivers could have more protection from federal prosecution, Baldwin said.

“It’s not just about the state law, it’s about how the federal government is treating the citizens in Montana,” Baldwin said.

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